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2014 DIGILAW 3598 (ALL)

Vishwas Shukla v. State of U. P.

2014-12-03

ARVIND KUMAR TRIPATHI II

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JUDGMENT Arvind Kumar Tripathi (II),J.: - 1. Heard learned counsel for the petitioners and learned standing counsel for the State respondents. 2. This writ petition has been filed challenging the order dated 9.10.2013 passed by the Basic Shiksha Adhikari, Unnao - respondent no.4 by which the representation of the petitioners was rejected. 3. It was submitted that the petitoners' mother Smt. Asha Shukla was appointed as Assistant Teacher by respondent no.4 on 27.3.1997 and she joined as such in Primary School, Tikwa Mau, Shiksha Kshetra Nawabganj, District Unnao. She died on 4.11.2007 while she was serving as Assitant Teacher in Primary School, Maswasi-I, Shiksha Kshetra Karan, District Unnao. After the death of mother, the father of the petitioners, being eligible, was granted family pension. However, the father of the petitioners solemnized his second marriage on 27.4.2008, and after that he informed the authorities to stop his pension and further informed that any pension, being released, in his favour after his remarriage, may be adjusted from his account. Thereafter, the petitioners submitted an application before respondent no.4 on 5.11.2009 to release the family pension in their favour, which was followed by another application dated 18.5.2011. The petitioners also submitted duly filled form, for family pension being released in the name of petitoner no.1, with the respondents. On the oral direction of respondent no.5 an affidavit from the grand mother of the petitioners was also furnished along with her no objection, but respondent nos.4 and 5 failed to take into consideration the application filed by the petitioners for release of family pension. 4. To cut long story short, a writ petition no.2916 (SS) of 2013 was filed in which the Hon'ble High Court directed respondent no.4 to decide the representation of the petitioners in accordance with law. The representation was rejected vide impugned order. 5. It was further submitted that relevant rules regarding family pension is mentioned in U.P. Basic Shiksha Niyam and Aadesh Sangrah. Thereafter, revision of pension G.O. No.1754/79-5-09-02/2009 dated 16.9.2009 was issued. Rule 6.3 thereof was stressed contending that widow/widower has been categorized in Class 1 (Ka); son, daughter (including widow daughter) are included in Class 1 (Kha). It was further submitted that while rejecting their family pension it has been mentioned that son is not eligible for family pension. 6. Thereafter, revision of pension G.O. No.1754/79-5-09-02/2009 dated 16.9.2009 was issued. Rule 6.3 thereof was stressed contending that widow/widower has been categorized in Class 1 (Ka); son, daughter (including widow daughter) are included in Class 1 (Kha). It was further submitted that while rejecting their family pension it has been mentioned that son is not eligible for family pension. 6. Learned standing counsel submitted on the basis of counter afffidavit that as father of the petitioners was granted family pension as being member included in Class 1 (Ka) of the above rules, then son, who is included in clause 1 (Kha) is not entitled for family pension. 7. It is to be noted that family pension is beneficiary rules provided to give relief to the family members of the deceased family, who fall in the criteria of the rules mentioned above. He further referred to paragraph 9 of the counter affidavit in which it has been submitted that family pension will be paid to the members covered under Class II; only in case of unavailability of the eligibile family members and there is no disabled person in the family of the deceased employee. The child born ealier would be admissible for family pension first, and only after his/her eligibility comes to an end, the other child would become eligible. 8. Relevant rules are reproduced below: - "Class II - Family pension will be paid to members covered under Class II such as unmarried/divorced daughters and dependant mother/father, only in case of unavailability of the eligible family member and there is no disabled person in the family of deceased teacher/employee. The admissibility of the family pension to the children would in respect of their date of birth, meaning thereby, the child born earlier would be admissible for family pension first and only after his/her eligibility coming to an end, the other child would become eligible" 9. A perusal of relevant Rules indicate that no provision has been made in the Rules as to what will be the position when the family member, mentioned in Class 1 (Ka) surrenders or presses for discontinuation of family pension; whether it will be given to family member mentioned in Class I (Kha), or whether it will cease? A perusal of relevant Rules indicate that no provision has been made in the Rules as to what will be the position when the family member, mentioned in Class 1 (Ka) surrenders or presses for discontinuation of family pension; whether it will be given to family member mentioned in Class I (Kha), or whether it will cease? The fact, mentioned in the counter affidavit, relates to the family members covered by Class II of Rule 6.3, but that is not with the case of the present petitioners. They are family members, mentioned in Class 1 (Kha) of the above Rules. 10. Admittedly, father being a member of Class I (Ka) was granted pension, but after entering into second marriage, he duly moved an application, which is Annexure 4, for discontinuation of pension, and his pension was discontinued. 11. From the above factual situation, it is evident that if there is no provision in the Rules to cover the above mentioned situation, it has to be interpreted by this Court as to whether the petitioners are entitled to family pension after such an eventuality or not? 12. Admittedly, granting of family pension is a beneficial rule, so the Rules are to be interpreted in the way, which is beneficial to the petitioners. 13. The petitioners has submitted that as per Class I (Kha) the son is entitled for family pension till his marriage or he attains the age of 25 years, whichever is earlier. It was submitted by the learned counsel that family pension is a right duly protected under Article 300-A of the Constitution of India and had the father married ealier, they would have been entitled for family pension. It was further submitted that petitioner no.1 is pursuing his studies of B.Tech IIIrd Semester, hence he is in need of money to pay his tution fee; and petitioner no.2 is prusuing his studies of class X, and as they were dependant upon their mother and family pension of father, they are suffering financial crisis. 14. As the Rules (Annexure 2) are silent to cover such eventualities, the beneficial interpretation comes in favour of the petitioners. Father has obtained family pension from 5.11.2007 till 27.4.2008, getting family pension for such short period will not be hurdle in the way of getting family pension by the petitioners and the petitioners are entitled to the family pension. 14. As the Rules (Annexure 2) are silent to cover such eventualities, the beneficial interpretation comes in favour of the petitioners. Father has obtained family pension from 5.11.2007 till 27.4.2008, getting family pension for such short period will not be hurdle in the way of getting family pension by the petitioners and the petitioners are entitled to the family pension. As the petitioners have moved an application before the authorities for releasing family pension in favour of petitioner no.1 till he attains the age of 25 years or he gains employment, whichever is earlier, and after that petitioner no.2 may get the family pension till he attains the age of 25 years and gains employment, the prayer is very well covered by Class I (Kha) of Rule 6.3 of relevant G.O. No.1754/79-5-09-02-2009, Lucknow dated 16th September, 2009. 15. As a consequence, the writ petition is liable to be allowed, and is hereby allowed. Impugned order dated 9.10.2013 is quashed. The respondents are directed to grant family pension to petitioner no.1 till he attains the age of 25 years or he gets employed, whichever is earlier, and after that grant family pension to petitioner no.2 till he attains the age of 25 years or he gets employed, whichever is earlier, along with arrears, if any, within a period of three months from the date of presenting a certified copy of this order.